CITATION: R. v. Levy, 2017 ONSC 7388
DATE: 20171211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Maureen Pecknold for the Crown
- and -
STEVE ANTHONY LEVY
John Erickson for Mr. Levy
HEARD: December 8, 2017
REASONS FOR SENTENCE
CORRICK J. (orally)
Introduction
[1] Mr. Levy was tried before me on charges of sexual assault, unlawful confinement and assault causing bodily harm. On November 23, 2017, I found him guilty of assault causing bodily harm. I acquitted him of the other two charges. He appears before me today for sentencing.
The Facts
[2] Mr. Levy and the complainant, C. M., were not acquainted with each other. On August 4, 2016, the complainant approached Mr. Levy outside of a bar to buy marijuana from him. He told her that he had none; that it was back at his apartment. She agreed to accompany him to his apartment.
[3] They were in his apartment for almost four hours. Sometime during those four hours, Mr. Levy beat C. M. violently about her head. He struck her head and face, and pulled at her neck and jaw. C. M. suffered a broken nose, scrapes and scratches on her face and neck, and bruises on her elbows and legs. Her face was red and swollen and her right eye was swollen shut. Mr. Levy and C. M. also had sexual intercourse in the apartment sometime that night. This was the subject matter of the sexual assault charge. I was not satisfied beyond a reasonable doubt that the element of lack of consent had been proven, and I acquitted Mr. Levy of that charge. I note it simply to indicate that C. M. was at some point an intimate partner of Mr. Levy.
Legal Parameters
[4] Assault causing bodily harm is punishable by a maximum of ten years in prison.
Positions of the Parties
[5] Ms. Pecknold, on behalf of the Crown, submits that a prison term of six to twelve months in addition to the time Mr. Levy has already served, followed by the maximum period of probation, is the fit disposition in this case. She submits that the principles of general deterrence and denunciation are the paramount sentencing principles to be considered, given the circumstances of the offence and Mr. Levy’s criminal record.
[6] Mr. Erickson submits that the length of time Mr. Levy has already spent in pre-sentence custody adequately addresses denunciation and general deterrence. He argues that a period of probation is the appropriate disposition.
Principles of Sentencing
[7] In determining a fit sentence for Mr. Levy, I am guided by the sentencing principles set out in the Criminal Code.
[8] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of the following seven objectives:
denouncing unlawful conduct,
deterring the offender and others from committing crimes,
separating offenders from society where necessary,
assisting in the rehabilitation of the offender,
providing reparations for harm done to the victim or to the community,
promoting a sense of responsibility in the offender, and
acknowledging the harm done to victims and the community.
[9] The sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.
[10] Keeping in mind the purposes of sentencing, I am also required by section 718.2 to bear the following principles in mind when imposing sentence:
❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
❏ all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.
The Circumstances of the Offender
[11] Mr. Levy is 42 years of age. He was born in Toronto. His parents separated when he was young, and he moved with his mother to New York City, where he grew up. His family struggled economically. Following the completion of high school, Mr. Levy became homeless. He suffers from schizophrenia, which at that time was undiagnosed. He began engaging in criminal activity.
[12] Mr. Levy returned to Toronto in 2011 after serving a prison sentence in Florida for carrying a concealed firearm. From April 2011 to March 2015, he was a patient in the Justice and Mental Health Program at the Scarborough Hospital. A letter written by Mr. Bhatti, Mr. Levy’s mental health therapist at that clinic, indicates that Mr. Levy has a diagnosis of schizophrenia and poly-substance abuse disorder. I pause to note that there is no evidence that Mr. Levy’s mental illness played any role in the commission of this offence, although there is some evidence that Mr. Levy had not taken his medication for some time prior to August 4. Mr. Levy is no longer a patient in the program because his illness was stabilized and his medication (Seroquel) was being monitored by his family physician. Despite this, Mr. Bhatti is willing to meet with Mr. Levy bi-weekly upon his release from prison to assist him with housing and mental health needs.
[13] I am advised by Mr. Erickson that Mr. Levy has received his medication regularly while in custody.
[14] Mr. Levy has a criminal record, marked as Exhibit 1. It begins in the United States in 2002 and includes convictions for theft, disorderly conduct, possession of marijuana and weapons offences. In 2009, he was sentenced to 19 months in prison after spending 225 days in pre-trial custody, for carrying a concealed firearm.
[15] In Canada, Mr. Levy’s record consists of three convictions for assault in 2014, two convictions for failing to comply with a recognizance, one conviction for breach of probation, and one conviction for mischief. The assault convictions relate to offences committed against Mr. Levy’s former domestic partner.
[16] At the time of his arrest, Mr. Levy had been working as a forklift driver and order picker in a warehouse. This was the first full-time job he had held in many years. He hopes to obtain that employment again upon his release from prison. Occasional part-time work is available to him from a friend who operates a company that sets up audio speakers at concerts.
[17] Mr. Levy has been in custody since his arrest on August 9, 2016. His girlfriend, Charlene North, has continued to stand by him. She is willing to have Mr. Levy reside with her and her 18-year-old son.
[18] Unfortunately, Mr. Levy’s 14-year-old son was murdered in New York City in February 2017. Mr. Levy’s incarceration prevented him from attending his son’s funeral.
Aggravating and Mitigating Circumstances
[19] I turn now to the aggravating and mitigating factors in this case, which I am required to consider.
[20] In aggravation, Mr. Levy is not a first offender. More significantly, this is not the first time he has been convicted of assaulting a woman with whom he has been intimate. On April 23, 2014, he was convicted of two counts of assault, and after serving 60 days in pre-trial custody, received a suspended sentence. On June 20, 2014, he was again convicted of assault and after spending 51 days in pre-trial custody, received a suspended sentence. These offences were committed against his domestic partner.
[21] He is also not a young man. He has had plenty of opportunity to demonstrate that the short prison sentences and probation orders he has received have had the necessary rehabilitative and deterrent effects on him. Unfortunately, this has not occurred, and Mr. Levy has again assaulted a woman.
[22] The impact of his crime on C. M. was significant. She sustained serious injuries, which were vividly depicted in photographs taken by police following the assault. Although she declined to provide a victim impact statement to the court, she testified at the trial that her face remained bruised for three weeks following the assault. She had difficulty talking for some time, and she continues to suffer from headaches daily.
[23] Mr. Levy took advantage of C. M. She was intoxicated when she approached him outside of the bar. She was vulnerable. She was much smaller in stature than Mr. Levy and certainly not as strong.
[24] Mr. Levy’s lack of regard and respect for C. M. was evident in the manner in which he discarded her clothing, tossing it into a rear parking lot, and attempted to disguise the injuries that he had caused her by giving her his black eye patch to cover her injured eye.
[25] It is difficult to identify the mitigating features of this case. Mr. Levy is fortunate to have the continued support of Ms. North. However, it is hard not to be sceptical about the influence his relationship with Ms. North will have on Mr. Levy’s rehabilitation. It certainly did nothing to stop him from seizing the opportunity to take advantage of C. M. on August 4, 2016.
[26] Mr. Bhatti has also indicated that he is prepared to work with Mr. Levy to find him housing and to deal with his mental health issues.
Sentences Imposed in Other Cases
[27] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances.
[28] Both counsel have referred me to a number of decisions that support their position on sentence.
[29] Ms. Pecknold referred me to cases in which a male accused assaulted a female complainant. Although each case is different, the range of sentence in the decisions to which she has referred me is between five months and three years in prison. The length of sentence was determined by the nature of the assault, the injuries sustained by the complainant, and the criminal record of the accused man.
[30] A review of these cases, and the cases to which Mr. Erickson has referred me, demonstrates that the circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not an exact science, but rather an individualized process driven by the unique facts of every offence and the unique attributes and circumstances of every offender.
Determination of a Fit Sentence
[31] What then is the fit sentence in this case? In my view, the aggravating features of this crime, together with Mr. Levy’s criminal record for offences of violence committed against a domestic partner, require a penitentiary sentence to adequately denounce his conduct, and to deter like-minded individuals.
[32] I have taken into consideration that Mr. Levy has not previously been sentenced to a period of incarceration in the penitentiary in Canada. It appears from his criminal record that the lengthiest period of time he has spent in custody in Canada is 60 days. I am aware that the Ontario Court of Appeal has cautioned sentencing judges from imposing “a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past.”[^1] However, this was a violent attack on a vulnerable woman resulting in serious injuries, and warrants a dramatically more severe sentence.
[33] In all of the circumstances of this case, I have concluded that a sentence of two years in prison to be followed by a three-year period of probation is the appropriate disposition. It is proportionate to the gravity of the offence and the responsibility of Mr. Levy. It reflects the aggravating and mitigating circumstances of the case, and satisfies the objectives of denunciation and deterrence without disregarding Mr. Levy’s rehabilitative prospects.
[34] Mr. Levy has been in custody since his arrest on August 9, 2016; some 490 days. Mr. Erickson informed the court that 15 of those days were applied to a sentence imposed on Mr. Levy on October 2, 2017, leaving a total of 475 days pre-sentence custody attributable to this offence. Applying the usual formula of 1.5 to 1 for the calculation of credit for pre-sentence custody, I will credit Mr. Levy for 713 days. This leaves a period of 17 days left to serve.
[35] Accordingly, Mr. Levy, on your conviction for assault causing bodily harm I impose a sentence of two years in prison, less 713 days, leaving you with 17 days left to serve.
[36] Following your release from prison, you will be placed on probation for a period of three years. In addition to the statutory terms, which will be explained to you by a court official, you will report to a probation officer as required, attend counselling as directed by your probation officer and sign any releases necessary to permit your probation officer to monitor your compliance with this condition. Furthermore, you are prohibited from having any contact, directly or indirectly, with C. M.
Ancillary Orders
[37] Finally, I make the following orders.
[38] First, pursuant to s. 109 of the Criminal Code, I order that Mr. Levy be prohibited from possessing any weapon described in that section for ten years.
[39] Second, given that Mr. Levy has been convicted of a primary designated offence, I make a DNA order pursuant to s. 487.051(1) authorizing the taking of a DNA sample.
Corrick J.
Released: December 11, 2017
CITATION: R. v. Levy, 2017 ONSC 7388
DATE: 20171211
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
STEVE ANTHONY LEVY
REASONS FOR SENTENCE
Corrick J.
Released: December 11, 2017
[^1]: R. v. Borde (2003) 63 O.R. (3d) 417 at para. 39